Court Acknowledges Lack of Expertise to Recommend Search Methodology, Orders Parties to Confer: eDiscovery Case Law

By : Doug Austin

In ACI Worldwide Corp. v. MasterCard Technologies, LLC and MasterCard International, Inc., Nebraska Magistrate Judge F.A. Gossett, acknowledging that the Court “simply does not have the expertise necessary to determine the best methodology to be employed in retrieving the requested materials in a safe, non-obtrusive, and cost-effective manner”, ordered the parties to “once again” confer in an effort to reach an agreement regarding the search methodology to be employed by the defendants in retrieving the information requested by the plaintiff.

August Case Law Pop Quiz Answers!: eDiscovery Case Law

By : Doug Austin

Yesterday, we gave you a pop quiz for the eDiscovery case law that we’ve covered recently. If you’re reading the blog each day, these questions should be easy! Let's see how you did. Here are the answers.

August Case Law Pop Quiz!: eDiscovery Case Law

By : Doug Austin

Here's an opportunity to give you a chance to catch up on cases we’ve covered recently with a case law pop quiz! If you’re reading the blog each day, these questions should be easy! If not, we’ve provided a link to the post with the answer. We’re that nice. Test your knowledge! Tomorrow, we’ll post the answers to this pop quiz for those who don’t know and didn’t look them up.

Court Orders Plaintiff to Re-Review 95% of its Production Classified as “Highly Confidential”: eDiscovery Case Law

By : Doug Austin

In Procaps S.A. v. Patheon Inc., after the plaintiff designated 95% of its forensically-produced documents (141,525 of 148,636) as “highly confidential”, Florida District Judge Jonathan Goodman ordered the plaintiff to re-review and re-designate those documents within ten days, and also assessed a $25,000 fees award against the plaintiff’s outside counsel to compensate the defendant for its efforts in reviewing the documents.

Court Has a “Beef” with Plaintiff’s Proportionality Argument: eDiscovery Case Law

By : Doug Austin

In Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, Kansas Magistrate Judge Teresa J. James granted the defendants’ motion to compel production of documents, overruling the plaintiffs’ objections to the discovery request in finding that “Plaintiff has not satisfied its burden to show that producing the requested documents would be unduly burdensome”.

If You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: eDiscovery Case Law

By : Doug Austin

In United States v. Louisiana, Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of "insufficient descriptions" within the privilege log's entries.

Apparently, in Discovery, Delta is Not Ready When You Are and It Has Cost Them Millions: eDiscovery Case Law

By : Doug Austin

A few years ago, we covered a case law decision in the Delta/Air Tran Baggage Fee Antitrust Litigation, where Delta was ordered to pay plaintiff attorney’s fees and costs for eDiscovery issues in that litigation. Apparently, Delta’s difficulties in this case have continued, as they have been ordered this week to pay over $2.7 million in sanctions for failing to turn over ESI, to go along with more than $4.7 million in sanctions for earlier discovery violations.

Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: eDiscovery Case Law

By : Doug Austin

In Charvat et. al. v. Valente et. al., Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith.

Apple’s Motion to Seal eDiscovery Vendor Invoice Line Items Granted by Court: eDiscovery Case Law

By : Doug Austin

In GPNE Corp. v. Apple, Inc., California District Judge Lucy H. Koh granted the defendant’s motion to file under seal specific line items from third-party e-discovery vendor invoices that were submitted in support of its bill of costs.

Should Contract Review Attorneys Receive Overtime Pay?: eDiscovery Trends

By : Doug Austin

Whether they should or not, maybe they can – if they’re found NOT to be practicing law, according to a ruling from the Second U.S. Circuit Court of Appeals.

“Da Silva Moore Revisited” Will Be Visited by a Newly Appointed Special Master: eDiscovery Case Law

By : Doug Austin

In Rio Tinto Plc v. Vale S.A., New York Magistrate Judge Andrew J. Peck, at the request of the defendant, entered an Order appointing Maura Grossman as a special master in this case to assist with issues concerning Technology-Assisted Review (TAR).

“Quality is Job 1″ at Ford, Except When it Comes to Self-Collection of Documents: eDiscovery Case Law

By : Doug Austin

In Burd v. Ford Motor Co., West Virginia Magistrate Judge Cheryl A. Eifert granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology, but did not rule on the issue of whether the defendant had a reasonable collection process or adequate production, denying the plaintiff’s motion as “premature” on that request.

Court Denies Plaintiff’s Request for Spoliation Sanctions, as Most Documents Destroyed Before Duty to Preserve: eDiscovery Case Law

By : Doug Austin

In Giuliani v. Springfield Township, et al., Pennsylvania District Judge Thomas N. O’Neill, Jr. denied the plaintiffs' motion for spoliation sanctions, finding that the duty to preserve began when the case was filed and finding that “plaintiffs have not shown that defendants had any ill motive or bad intent in failing to retain the documents which plaintiffs seek”.

Similar Spoliation Case, Somewhat Different Outcome: eDiscovery Case Law

By : Doug Austin

In Malibu Media, LLC v. Michael Harrison, Indiana District Judge William T. Lawrence denied the plaintiff’s motion for summary judgment, upholding the magistrate judge’s ruling which found an adverse inference instruction for destroying a hard drive with potentially responsive data on it to be not warranted, and ruled that “it will be for a jury to decide” if such a sanction is appropriate.

Plaintiff Once Again Sanctioned with an Adverse Inference Instruction, But Still No Complete Dismissal: eDiscovery Case Law

By : Doug Austin

In Lynn M. Johnson v. BAE Systems, Inc. et. al., District of Columbia District Judge Robert L. Wilkins granted the defendants’ motion for summary judgment with respect to the plaintiff's claims for negligence, battery, and defamation, but chose to “impose lesser, but nonetheless severe, sanctions” in the form of an adverse inference instruction for her remaining claim for intentional infliction of emotional distress.

Plaintiff Ordered to Re-Produce Files in Native Format Because it Failed to Meet and Confer with Defendant: eDiscovery Case Law

By : Doug Austin

In Themis Bar Review, LLC v. Kaplan, Inc., California Magistrate Judge Barbara L. Major ordered the plaintiff pay for the cost to produce files in native format after the plaintiff originally produced unsearchable PDF images without metadata and failed to properly meet and confer with the defendant regarding production format as stipulated in the parties’ Joint Discovery Plan.

Judge Recommends Default Judgment Sanctions Against Defendants, Even Though Some Deleted Files Were Recoverable: eDiscovery Case Law

By : Doug Austin

In Malibu Media, LLC v. Tashiro, Indiana Magistrate Judge Mark J. Dinsmore issued a Report and Recommendation on Plaintiff’s Motion for Sanctions, recommending that the Court grant the plaintiff's motion against the defendants for spoliation of evidence and perjury and enter default judgment against the defendants.

Plaintiff Ordered to Image its Sources of ESI, Respond to Disputed Discovery Requests: eDiscovery Case Law

By : Doug Austin

In Electrified Discounters, Inc. v. MI Technologies, Inc. et al., Connecticut Magistrate Judge Donna F. Martinez granted the defendant’s motion to compel the plaintiff 's responses to discovery and ordered the plaintiff to “image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files”.

New York Supreme Court Sanctions Two Attorney Defendants for “Egregious Misconduct” in Spoliation of Data: eDiscovery Case Law

By : Doug Austin

In HMS Holdings Corp. v. Arendt, et al., the New York Supreme Court in Albany County ordered a mandatory adverse inference instruction so that the trier of fact could “draw the strongest possible adverse inference from defendants' bad faith and intentional destruction, deletion and failure to produce relevant evidence”. The court also awarded attorney fees, and forwarded a copy of the order regarding Defendant Lange to the New York State Committee on Professional Standards for attorneys.

Court’s “Jazzy” Decision to Award Costs May “Bug” Plaintiff, But Defendant Doesn’t Mind a “Bit”: eDiscovery Case Law

By : Doug Austin

In Fitbug Ltd. v. Fitbit, Inc., California District Judge Samuel Conti, throwing in a jazz reference during his opinion, ruled to tax over $63,000 in costs to be paid to the prevailing defendant in the case.



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About the Bloggers

Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at